CYIL Vol. 7, 2016
JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ a government’s armed attacks on its own population” is a quite revolutionary idea, evidently without any clear support in the UN Charter or general international law… Prohibition of the use of force embodied in Art. 2 (4) is considered to be one of the ius cogens norms binding individual states, coalitions of states, international organizations, including NATO. Teleological and historical interpretation of Art. 2 (4) was of a “comprehensive nature”, and “phrase” or “in any other manner inconsistent with the purposes of the United Nations” was not enacted (despite certain views) as an exception from this general prohibition. 8 Art. 2 (4) has become, like Art. 51, the subject of a “certain misinterpretation”. B. Simma emphasized that Art. 51 “unequivocally limits whatever farther – reaching right of self-defence might have existed in pre-Charter customary law to the case of an armed attack.” 9 Art. 43 of the UN Charter, as it is known, has never been effected in practice. Instead “authorization” or “recommendation resolutions” of the UNSC for the use of armed force have substituted Art. 43 agreements. After having determined that a threat to the peace, a breach of peace or an act of aggression occurred, the UNSC may take military enforcement action under Art. 42. In practice such military action may be carried out on the basis of an authorization or a “mandate” of the UNSC. This “authorization”, “delegation” or “empowerment” by the UNSC may come through individual states (exceptionally), a coalition of states, or international organizations (mostly through NATO). The UNSC resolutions authorizing the use of military force to states or an international organization in fact serve as “delegation” of the UNSC powers, within limits designated by resolutions. The ILA Report rightly refused the interpretation that the reference in Art. 2 (4) to use force “against the territorial integrity or political independence of any state” could be claimed as having permitted one to use armed force for other objectives, e.g. humanitarian interventions. It was here rightly noted that travaux preparatoires of the UN Charter demonstrates that inclusion of the reference to territorial integrity or political independence was not intended to narrow the prohibition of the use of force. The Report recalled that the intention of the authors of the UN Charter was to state “an absolute, all-inclusive prohibition” and that the phrase “or in any other manner” was designed to ensure that there should be no loopholes.” 10 The Report supports a “ de minimis treshold” of seriousness below which a use of force does not fall within Art. 2 (4)’s “prohibition”. Reference was made in this assertion to “indication” from state practice and case law. At the same time, the Report acknowledges that a law enforcement situation may evolve into one of prohibited use of force. It seems rather difficult to decide when the use of force is allowed and in what intensity. The Report 8 Supra note 2, p. 2. 9 Ibid., p. 3. 10 Ibid ., p. 4. The Report refers to U.N.C.I.O. Vol. 6, p. 334-335 see also BROWNLIE, I. International Law and the Use of Force by States. Oxford: Clarendon Press, 1963, p. 267.
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